Fifty Shades of Copyright Protection

In September, 2012, Facebook became the third largest country on the planet. In just eight short years, Facebook intrigued more than 1 billion monthly active users and over 680 million daily users to access the social media site from their mobile product. In 2008, Facebook launched its iPhone application. Since that time, over 300 million photos have been uploaded to Facebook.

The legal controversy that has arisen is this: once you upload a photo to a social media site, who owns it? You may be thinking two things: 1) “Well of course I own my photos on my personal social media account.” Not entirely true. Or, 2) “Who cares about a bunch of kids photos?” Well, not so fast my friend. On the contrary, the fastest growing social media demographic from 2012 was people ages 45-54. And besides the fact that many “mature adults,” if I may, are now uploading personal and professional content, corporate America has also tapped into the social media network, and has spent exorbitant amounts of money investing in logos, slogans, and other forms of intellectual property, which are arguably not solely their property any longer, once in the hands of Mr. Zuckerburg and other social media tycoons.

Social medial users may lose a substantial portion of their legal intellectual property rights after they “post” on their personal accounts. You may have read the popular book Fifty Shades of Grey by E. L. James. For those unaware, this series of novels is about a literature student who meets a young billionaire entrepreneur and the erotic passions they enjoy together. You may also have heard Universal City Studios and its Focus Features division spent $5 million in March, 2012 to make Fifty Shades of Grey into a movie. What you may not have heard is that Smash Pictures thought the story was a natural for an adult movie adaptation, so they beat Universal to the punch and made a XXX version.

Universal sued Smash alleging copyright and trademark infringement. However, Smash raised an interesting argument in its defense. It asserted the copyrights in the Fifty Shades of Grey books were invalid – and free for anyone to use –because “as much as 89% of the content of the allegedly copyrighted materials grew out of a multi-part series of fan fiction called Masters of the Universe based on Stephenie Meyer’s Twilight novels. . . . much or all of this material was placed in the public domain.”

Fan fiction is essentially stories about original works written by fans, rather than by the original creator. FanFiction.net’s Terms of Service state that while the User retains ownership over User Submissions, the User “grant[s] FanFiction.Net [and each user of FanFiction.Net] a worldwide, non-exclusive, royalty-free, transferable license to use, reproduce, distribute, display, and perform the User Submissions in connection with the FanFiction.Net Website.” The User also “waive(s) any moral rights [i.e. ability of authors to control the fate of their work],” and “understand[s] . . . FanFiction.Net may retain . . . server copies of User Submissions that have been removed or deleted.” This can plainly be read to mean the postings of fans are in the public domain. Therefore, you can see where Smash obtained its “invalid copyright” argument. This case recently settled with Smash paying Universal “a private sum” – leaving the issue unresolved.

This lawsuit does, however, highlight the potential fine-print legal implications as to other social media’s Terms of Service, which most of us have never read in the first place. Yet, virtually every court will certainly hold ignorance of a contract you agree to is no defense for the loss of rights embodied within it. And what you don’t read can hurt you, your organization, or your clients.

Each social media site’s Terms of Service are different as to ownership and rights. Pinterest’s and Facebook’s Terms of Service are very similar to FanFiction.net’s regarding ownership. However, YouTube’s Terms of Service allow for broader rights in user-generated content, stating, ". . . you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and YouTube’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. (emphasis added)."

Therefore, although you may technically own the submitted content posted to Pinterest, Facebook, YouTube and other social media sites, you also simultaneously grant substantial rights to these social media sites and their users to do as they please, with no repercussions, such as “sharing” (pirating) music and videos, posts without the scope of “fair use” disclaimed, “dilution” of trademark protection or intrinsic value, complete loss of trade secret rights, or posts without any origination credit or acknowledgment associated.

Many people are obsessed with documenting their life via social media. There is even a new term for the fear of being without your cell phone, affecting some 66% of Americans: Nomophobia. Your daily photo and video contributions of sunsets, birthday parties, dinner, artwork or the growing obsession with “selfies” lose most of their legal rights associated as soon as the “Send,” “Upload,” and/or “Pin” button is tapped. Those individuals or companies who have invested money into their intellectual property or may be able to turn their posts into something valuable (i.e. accidental YouTube sensation Sweet Brown suing Apple for $15 million for the song-sampled phrase “I got bronchitis”) might just want to weight social media’s fine print vs. rapid-fire posts.